Two Albertans who paid thousands of dollars for surgery in the United States after facing long waits for treatment back home will argue their constitutional challenge of the province’s ban on private medical insurance before a Calgary judge on Thursday.

The lawyer for Darcy Allen and Richard Cross says Alberta’s “monopoly” on health care and inability to manage long wait lists leave patients little choice but to suffer for months and years or to shell out big dollars for private health care outside Canada.

“What the court action seeks to achieve is rather than people like Darcy Allen and Richard Cross needing to go to the U.S. because their only other choice is to suffer in pain for years on a waiting list, we want those people to be able to obtain health care here in Canada,” said John Carpay of the Justice Centre for Constitutional Freedoms.

“The government’s monopoly of the health-care system is failing the objective of providing reasonable access to health services.”

I’m not here to destroy public health care

Dr. Allen, an Okotoks dentist, said the pain from a hockey injury forced him to stop work in 2009. Facing a wait list longer than a year in Alberta, he spent more than $77,000 to travel to Montana for surgery.

Mr. Cross paid $24,000 for back surgery in Arizona in 2010 after the Calgary businessman was told he’d need to wait years for surgery.

The two men are arguing the ban on private insurance infringes on their Charter section 7 right to life, liberty and security of person.

“I’m not here to destroy public health care, but we’ve got to find other ways of getting health care out there to people,” said Dr. Allen, now an assistant professor at the University of Saskatchewan.

The case hinges on the landmark Chaoulli decision of the Supreme Court of Canada in 2005, which ruled that Quebec’s ban on private medical insurance as the province struggled with long wait lists wasn’t constitutional.

Alberta will argue the situations in the two provinces are not similar. The province’s position, laid out in a brief filed with the court, also noted that it’s not clear that the delays and pain the two men experienced were caused by the ban on private insurance.

“Alberta does not want people who are uninsurable to be left behind,” the brief says.

Mr. Carpay said a mix of public and private health-care would make for a healthier system. “It’s fine for the government to have a health-care program, and we’re not disputing that. We’re saying people should have the freedom to access health care outside of it.”